Ferrigno v Qantas Airways Limited

RANGIAH J: 1 This matter has an unfortunate procedural history. There were initially 24 applicants and five respondents, but only five applicants and three respondents are left. The applicants were originally represented by the same firm of solicitors, but the remaining five applicants became dissatisfied (for understandable reasons) with the quality of their legal representation and decided to proceed unrepresented. 2 The proceeding has been listed for trial for 2½ weeks in Brisbane. The applicants have now filed an interlocutory application seeking leave for a person who is not a lawyer to represent them at the trial. 3 The applicants' interlocutory application seeks that: An immediate Order is made for the Applicants to be granted leave to select their own Attorney. Our trust in the system has diminished due to our previous experience with legal representation. The five (5) Applicants are seeking to designate Mr Spiros Kalitihos as their representative through an Enduring Power of Attorney. Introducing Mr Kalitihos, along with his extensive experience, will expedite the court proceedings and eliminate the need for separate cross-examinations of the witnesses on 5 occasions. As inexperienced litigants, it is within our just and ethical rights to have the autonomy to choose our own advocate. 4 The respondents oppose any grant of leave for Mr Kalotihos to represent the applicants. 5 The substantive proceedings arise from the respondents' adoption of a policy requiring their employees to be vaccinated against COVID-19 and the subsequent termination of the applicants' employment when they failed to comply with the policy. 6 The applicants allege, inter alia, that the vaccination policy was not lawful and reasonable, that the respondents failed to comply with consultation requirements under relevant enterprise agreements and that the policy breached the Human Rights Act 2019 (Qld). They claim declaratory orders, reinstatement of their employment, compensation and damages. 7 The applicants have each provided Mr Kalotihos with an enduring power of attorney under which they "authorise" him to "represent" them in the proceeding. 8 Mr Kalotihos has deposed: 2. Between 1984 - 2004 I was in effective control of a number of legal/paralegal companies providing legal services including but not limited to; representation in court, preparing, filing, and serving legal documents, attending court in all jurisdictions, paralegal services, process serving, title and company searches, private investigation, electronic surveillance and security systems. 3. Hundreds of Victorian law firms engaged my services to attend to legal research, investigations, court appearances, property settlements, and court filing. 4. For the avoidance of doubt, I was not admitted to the bar, nor was I a licenced legal practitioner. I obtained the consent of the court for each occasion of my apprearance (sic). 5. I am familiar with and have consistently complied with the court's code of conduct. 9 The representation that the applicants seek to have Mr Kalotihos provide includes cross-examining witnesses and making submissions. The applicants propose to pay him $2,000 for his expenses. 10 Rule 4.01(1) of the Federal Court Rules 2011 (Cth) (the Rules) provides that: A person may be represented in the Court by a lawyer or may be unrepresented. 11 Under Sch 1 of the Rules, "lawyer" has the meaning given by s 4 of the Federal Court of Australia Act 1976 (Cth) (the Act). Section 4 of the Act defines "lawyer" to mean, "a person enrolled as a legal practitioner of a federal court or in the Supreme Court of a State or Territory". 12 Rule 4.01(1) allows a party to either be represented by a lawyer or to be unrepresented. That binary choice operates to prohibit a non-lawyer from representing a party, at least without the leave of the Court. Mr Kalotihos does not claim to be a lawyer. 13 The applicants submit that their enduring powers of attorney in favour of Mr Kalotihos entitle him to present their case at trial. As I understand the submission, it is that the enduring powers of attorney somehow operate to transform Mr Kalotihos into the applicants' alter egos such that he would be presenting their cases as if he were them. 14 However, that is not the effect of an enduring power of attorney. It appears that the enduring powers of attorney were given by the applicants under the Powers of Attorney Act 2014 (Vic). Section 22(1) of that Act provides that by an enduring power of attorney, a person may authorise an eligible attorney, "to do anything on behalf of the person that a person can lawfully do by an attorney". 15 In Cornell v Nagle [1995] 2 VR 188, where a similar argument was advanced, Phillips J held that a power of attorney does not transform the attorney into the alter ego of the principal. The defendant had been restrained by an order of the Supreme Court of Victoria from acting or practising as a solicitor, but proceeded to prepare and file documents in court and sought to appear in proceedings in reliance upon a power of attorney granted by a client. In determining the consequent proceedings for contempt, his Honour held at 220-221: …The granting of a power of attorney does not convert the donee into the donor; it does not authorise the agent to become the principal and the agent is never the alter ego of the principal, save in a very loose way of speaking. The agent is authorised by the granting of the power to do what an agent may lawfully do (see, for instance, Instruments Act 1958 s107(1)) and many an agent is required by law to have special qualifications or to be licensed… … Essentially, what remains is a distinction between what may lawfully be done for a party to litigation by an agent and what may not be done for him by an agent who is not a qualified legal practitioner. 16 The enduring powers of attorney do not operate to make Mr Kalotihos the alter ego of the applicants for the purposes of r 4.01 of the Rules. 17 Neither do the enduring powers of attorney operate to confer upon Mr Kalotihos any entitlement to represent the applicants at the trial. 18 In Vella v Wybecca Pty Ltd [2014] VSC 443, Hargrave J held: 18 … In Waddington v Magistrates' Court of Victoria & Kha (No 2), Emerton J considered a similar argument. In that case, it was contended that Mr McDonald was a person "empowered by law" within the meaning of s 100(6) of the Magistrates' Court Act 1989 (Vic) to appear on behalf of Mr Waddington, who was a party to the Magistrates' Court proceeding. The power of attorney in that case apparently expressly authorised Mr McDonald to present Mr Waddington's case in the proceeding. Mr Waddington relied also upon the general principle of agency expressed in Halsbury's Laws of England, 5th Edition, as follows: As a general rule whatever a person has power to lawfully to do can be done by him, her or it through an agent. There are exceptions including where a statute prevents it and where the power concerned is purely personal and therefore not capable of delegation. 19 As Emerton J noted, there are restrictions upon an attorney appointed by an instrument such as that in this case. Both the Instruments Act and the general agency principles set out in Halsbury state that an attorney can only be lawfully appointed to do that which the donor of the power can lawfully do by an attorney. … 21 In Waddington, Emerton J held that Mr McDonald's proposed representation of Mr Waddington would amount to him unlawfully engaging in legal practice for the purposes of the Legal Profession Act… 22 In this case, Mr Giza does not just seek to represent Mr Vella at oral hearings. He has purported to act as, in effect, his solicitor in the proceeding, notwithstanding he is not entitled to do so. Both forms of representation are prohibited by the Legal Profession Act. 19 In this case, the terms of the enduring powers of attorney purport to authorise Mr Kalotihos to "represent" the applicants in the proceeding. However, that authority is subject to the restriction under of s 22(1) of the Powers of Attorney Act that an eligible attorney can only be authorised to do that which a person, "can lawfully do by an attorney". An enduring power of attorney cannot authorise a non-lawyer to represent a person in a court proceeding because there are two statutory prohibitions or restrictions upon such representation. 20 First, the trial is to be conducted in Queensland, and, by s 24(1) of the Legal Profession Act 2007 (Qld), "[a] person must not engage in legal practice in this jurisdiction unless the person is an Australian legal practitioner". The expression "jurisdiction" is defined to mean, "a State or Territory of the Commonwealth", which obviously includes Queensland. The phrase "engage in legal practice" is defined to include "practise law", but is not otherwise defined. In Legal Services Commissioner v Raghoobar [2023] QSC 41 (Martin SJA) and Legal Services Commissioner v Walter [2011] QSC 132 (Daubney J) it was held that the phrase means, "carry on or exercise the profession of law". 21 In the present case, Mr Kalotihos would cross-examine witnesses and make submissions at the trial for payment of a fee (albeit that the fee is intended to cover his expenses). He would effectively be acting as a barrister. In my opinion, he would be engaging in legal practice. The enduring powers of attorney can only authorise the attorney to do anything "that a person can lawfully do by an attorney". They cannot authorise a non-lawyer to engage in legal practice. 22 Second, r 4.01 of the Rules operates to prohibit a non-lawyer from representing a party in Court, at least without the Court granting dispensation from the rule. The enduring powers of attorney cannot overcome the prohibition. They cannot authorise a non-lawyer to do that which is prohibited by the Rules. 23 Accordingly, the enduring powers of attorney do not operate to entitle the applicants to be represented at the trial by Mr Kalotihos. 24 The respondents submit that, although r 1.34 of the Rules allows the Court to dispense with compliance with any rule including r 4.01, the Court has no power to allow a person who is not a lawyer to represent a party because that would authorise a non-lawyer to engage in legal practice contrary to the Legal Profession Act. The respondents' submission is answered by the reasons of Logan J in Hii v Commissioner of Taxation [2019] FCA 1589: 11 As was acknowledged by the Judicial Committee of the Privy Council in O'Toole v Scott [1965] AC 939, at 952, Collier v Hicks also stands for a wider proposition, which is that, subject to any statutory provision to the contrary, both judges and magistrates, as an incident of the power to regulate the judicial proceedings of the court which they are constituting, have a discretion to allow any person to act as an advocate in those proceedings. Were there any doubt in relation to the power of this Court to grant such leave as an incident of the exercise of judicial power, and it was not suggested that there was in submissions, that power would be supplied in any event by s 23 of the Federal Court of Australia Act 1976 (Cth) (FCA Act), such is the breadth of power conferred by that section. 12 No different position in relation to the appearance as an advocate by a layperson for a party is revealed by the Rules. The Rules could not, of course, contradict a position for which an Act provides. But they do not. Materially, r 4.01 provides: Proceeding by lawyer or in person (1) A person may be represented in the Court by a lawyer or may be unrepresented. Any such lawyer would have to be a person entitled under the Judiciary Act to practise in a court exercising federal jurisdiction. In turn, the Court has power to dispense with the operation of the Rules in the circumstances of a particular case. By such dispensation, the Court might order that a person be permitted to be represented by a person other than a lawyer. 25 Accordingly, the Court may grant leave to a non-lawyer to represent a party in Court. 26 However, it must be recognised that granting leave for a non-lawyer to represent a party in Court would be contrary to the policy of both r 4.01(1) of the Rules and s 24 of the Legal Profession Act. In Nepal v Minister for Immigration and Border Protection [2015] FCA 366, Edelman J explained the policy underlying r 4.01(1) of the Rules at [15]: …[W]here a party cannot obtain representation by a lawyer, great care must still be taken before allowing a non-lawyer to speak for the party to legal proceedings. The non-lawyer is not regulated, the non-lawyer has not been trained in the ethical duties of lawyers to the court, and the non-lawyer may do more harm to the party than good. 27 In Damjanovic v Maley (2002) 55 NSWLR 149, Stein JA (Mason P and Sheller JA agreeing) held: 76 In my opinion, the overall duty of a barrister or solicitor to the court is an important consideration. It is a duty of candour and a practitioner must not knowingly mislead the court. The court is entitled to place reliance on that duty and expect it to be met. The disciplinary codes of the legal profession back up the overriding duty of a practitioner to the court. (See Ipp, The Hon D. A., Lawyers' duties to the court, (1998) 114 LQR 63). 77 Training, qualifications and experience are also important. This is not to say that there are not incompetent lawyers, including some who seek to practice advocacy. For the most part, the market and the disciplinary codes account for them. But with unqualified and uninsured lay advocates, the court loses the benefit of the overriding duty and clients are at a distinct disadvantage. Apart from endeavouring to ensure that a lay person granted leave to appear obeys the rules, there is little a court can do except, in an appropriate case, withdraw the leave to appear. … 83 What runs through all of the authorities as the guiding principle in the exercise of the discretion is the public interest in the attainment of the ends of justice. The public has an interest in the effective, efficient and expeditious disposal of litigation in the courts. As a general rule this can best be achieved by parties employing qualified lawyers. 28 In Cristovao v Registrar Caporale [2012] FCA 1329, Murphy J held at [28]: …[C]ourts must be very careful in allowing an unqualified person to participate in a proceeding as an advocate. All the circumstances of the case must be considered, and in particular the following factors will often be relevant considerations: (a) the complexity of the case; (b) the genuine difficulties of the unrepresented parties; (c) the unavailability of disciplinary measures and a duty to the court by lay advocates; (d) the protection of the client and the opponent; and (e) the interests of justice. 29 I accept that the applicants will find it difficult to adequately present their cases without the assistance of someone familiar with the relevant procedural and substantive laws. They have expressed their sense of being overwhelmed by the volume of material they have to deal with. That is entirely understandable. 30 I am certainly sympathetic to the applicants' plight. By letter to the Court dated 8 June 2023, the applicants explained they were no longer represented by their former solicitors, "for reasons including but not limited to, gross incompetence, negligence, lack of transparency, and failure to take instructions". The applicants' assessment seems consistent with their former solicitors' shoddy conduct of the proceeding, including their disorganisation and repeated applications for extensions of time to comply with procedural orders. On 6 May 2023, I took the unusual step of ordering costs against the applicants because of their solicitors' inability to comply with orders. It was unusual because s 570 of the Fair Work Act 2009 (Cth) only allows an order for costs to be made where, relevantly, a party has engaged in an unreasonable act or omission. The applicants' frustration with their former solicitors' conduct of the proceeding was entirely understandable. 31 The applicants assert that they have not been able to obtain alternative legal representation, but have provided little information about their attempts to do so. They say that when they have informed any lawyer about the nature of their case, the lawyer has not been willing to take it on. However, it has been about two months since they ceased to be represented and they have had an adequate opportunity to find another lawyer. Their asserted inability to do so has not been adequately explained. 32 There is nothing to suggest that Mr Kalotihos is sufficiently competent and familiar with the practices and procedures of the Federal Court or the substantive law to be able to provide adequate representation to the applicants. In fact, the content of his affidavit suggests that the opposite is true. Mr Kalotihos has deposed that he is, "familiar with and ha[s] consistently complied with the court's code of conduct". No relevant "code of conduct" has been issued by the Federal Court. That casts substantial doubt upon whether Mr Kalotihos has any familiarity with practice in the Federal Court and the standards of conduct required of legal representatives appearing before the Court. 33 I am not persuaded that allowing the applicants to be represented by Mr Kalotihos would result in any substantial efficiencies in the trial. He has not acted as a paralegal for about 20 years. While he refers to having provided "representation in court" and to his "court appearances", this seems likely to have been in uncontested proceedings. There is no indication that Mr Kalotihos has ever represented any person in a trial in any court. 34 I am not satisfied that the interests of justice require that an order should be made allowing the applicants to be represented by Mr Kalotihos. 35 The interlocutory application will be dismissed. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rangiah.